Persuasive Litigator

Close Your Case By Walking Through the Decision and Verdict Form (Another Note on the John Edwards Trial)

By Dr. Ken Broda-Bahm: 

Your opening is a story, I've written before, about what happened and about what kind of case this is. The closing is a different story, not about what happened, but what is about to happen: deliberations and a verdict, hopefully in your favor. It makes little sense to go all the way to closing arguments and then tell the jurors the story of what happened as if they are just putting it together for the first time. Instead, closing arguments should transcend the now-familiar story to focus on impending deliberations and walk jurors through the specifics of the verdicts they're about to render. 

But that isn't what happened at the close of the trial of John Edwards, the two-time presidential candidate and general two-timer. Instead, based on transcripts of the arguments, both the government and the Defense appeared to end the case much as it began, with a dramatic recounting of what happened. As this blog goes to press, the jury is now entering its fifth day of deliberations, and that may be a sign that they could have used a little more direction at the conclusion of the case. It brings to mind what I like most about high-profile cases: the opportunity for high-profile lessons. In this post, I'll be taking one more look at the John Edwards trial (probably the last...unless the verdict is really interesting) and drawing out some lessons on the unique function of structure in a closing argument.

Take a Lesson from Political Campaigns: Going Negative Works (Partially)

By Dr. Ken Broda-Bahm:

As the pack of Republican presidential contenders heads out of Iowa, there is an important lesson for litigators and other persuaders, but it is partly simple and partly complex.  The simple part is that negative campaigning works.  Just ask Newt Gingrich who was on the receiving end of more than four million dollars worth of attack ads run by Mitt-friendly PACs in the weeks leading up to Tuesday's Iowa caucuses.  Gringrich, who just weeks earlier had been ahead of Romney in the polls, settled for a fourth place finish while Romney managed to eke out a victory.  As much as we like to believe that politics, like litigation, is all about presenting a positive vision, the reality is that negative appeals can be dramatically effective. 

The complex part of the lesson is that the effectiveness of negative appeals can vary based on source, timing, and the overall balance of your message.  A number of factors, particularly relevant in a litigation context, influence when a pointed attack on your adversary will work, and when it will bounce back at you, reducing your credibility more than your opponent's. 

No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers

By Dr. Ken Broda-Bahm -

Your case has finally gone to the jury, and the panel is now ensconced in the jury room.  What are they doing in there?  Are they carefully and logically arguing the merits of your case, considering all sides until the truth wins out?  If you have ever watched a closed-circuit feed of mock jury deliberations, or talked in detail with actual jurors after a verdict, you know the answer is, "No, not really doing that."  What they are likely doing instead is using argument instrumentally as a tool to help the side that they favor, possibly for reasons unrelated to their arguments. 

In part one of this series, I wrote about jurors' "motivated reasoning," or the tendency for our logic to follow our motivations, and our reasons to be generated more readily in support of what we want to be true.  This absence of neutrality in an individual juror's reasoning is replicated in the entire jury's patterns of argument.  Instead of arguments being used as a path to truth -- an idea that is at the heart of the adversary system -- new research is focusing on the fact that jurors and others argue in order to gain advantage for a favored position.  If argument is more of an instrumental way to gain leverage in deliberations, and less of a method of testing truth, then that has important implications for the ways attorneys advocate in court, especially during closing arguments.  

Go Ahead and Talk with Your Hands, But Know What You're Saying

By: Dr. Ken Broda-Bahm -

 

For an upcoming opening statement or closing argument, your gestures are probably the last thing on your mind...until you actually get up to speak.  Then, the commentator in your brain might be asking, "why am I gripping the sides of this lectern?" or "Is there a way I can make myself stop these meaningless chopping motions?"  In this post, I want to answer the speaker's age-old question, "but what do I do with my hands?" by focusing on some recent studies on the communicative role of gestures, as well as providing some practical advice for gesturing naturally in front of your jury or your judge. 

Now, this is the point in an introduction to an article on gestures where I would point out the familiar statistic that communication is 93% non-verbal...if that were true.  Actually, this urban myth is based on a popular, but incorrect reading of some research in the sixties that even the author of the study has disavowed.  It remains true that physical gestures are important parts of a message, but that is not because they convey a direct or definite meaning.  I am not one of those who thinks you can 'decode' gestures or other body language to reveal hidden meanings -- it just isn't that simple.  Instead of playing a deterministic role, gestures are more subtle. 

Avoid the "And Another Thing..." Style in Rebuttal

By: Dr. Ken Broda-Bahm, Dr. Kevin Boully, Dr. Karen Lisko, & Dr. Shelley Spiecker -

For all the careful attention and planning that goes into a good opening statement story, and a strong closing argument structure, the rebuttal can end up sounding like an afterthought -- especially when it is an afterthought.  Composed on the fly while listening to your opponent's argument, your rebuttal can often be reduced to a simple shopping list of the points you'd like to make, without the glue of clear structure or strategy to hold the message together.  While you might think that all a rebuttal needs to do is "clean up" any points that still need more attention, structure remains an important part of the message, especially when we are talking about the last words that your decision makers will hear from you.  The problem with the "and another thing..." structure is that it does nothing to help you prepare, it doesn't aid the audience's comprehension, and it doesn't promote persuasion.  As Supreme Court Justice Antonin Scalia and Bryan Garner note in their recent book, "the scatter-shot approach is no more effective [in rebuttal] than anywhere else.”  Even if your shopping list does give you a clear sequence, if you made that list while your opponent was speaking, then as Lubet's Modern Trial Advocacy points out, you are replicating your opponent's structure, not your own. 

This post is a little special, and not just because the photo of the four of us bears a striking resemblence to the cover of Let it Be.  We decided to put our heads together for Litigation Postscript's first jointly-authored piece, on the topic of what makes for effective rebuttal.  Whenever you get a chance to give a rebuttal, then let it be the best and last word that your decision makers will hear on the point.  Ultimately, a good rebuttal comes as a result of having a clear structure in advance, fitting the most important points that need to be refuted to that structure, and adding in a number of strategies designed to keep you on the offensive rather than the defensive.  Below, we review a number of critical rebuttal strategies, ending with an example rebuttal creatively developed from the general fact pattern of Liebeck v. McDonald's Restaurants, the infamous "hot coffee" case.